6 ENDANGERED SPECIES BULLETIN NOVEMBER/DECEMBER 1999 VOLUME XXIV NO. 6
The Endangered Species
Listing Program by Joy Nicholopoulos
The Endangered Species Act of
1973 (ESA) gives the Secretary of the
Interior responsibility for making a very
important decision: determining whether
to place an animal or plant on the
Federal list of endangered and threat-ened
species. This responsibility is
delegated to the Director of the U.S.
Fish and Wildlife Service (FWS). The
Director has authority to approve all
petition findings, listing proposals, and
final listing determinations.
But how exactly does a species
become listed under the ESA? The
process is cumbersome, complex, and
generally poorly understood. It can
happen two different ways: through the
petition process or through the candi-date
assessment process. The ESA
provides that any interested person may
petition the Secretary of the Interior to
add a species to, or to remove a species
from, the list of endangered and
threatened species. Through the
candidate assessment process, FWS
biologists identify species as listing
candidates. (See “The Candidate
Conservation Program” in Bulletin Vol.
XXIV No. 5.) Both processes may result
in a species being proposed for Federal
listing under the ESA.
The Basis for Listing
Under the ESA, the following factors
determine whether or not a species
should be listed as endangered or
threatened:
• the present or threatened destruction,
modification, or curtailment of the
species’ habitat or range;
• overutilization for commercial,
recreational, scientific, or educational
purposes;
• disease or predation;
• the inadequacy of existing regulatory
mechanisms; and
• other natural or manmade factors
affecting the species’ continued
existence.
The Listing Proposal
Procedures for listing vulnerable
plants and animals under the ESA have
become increasingly rigorous over the
years. Currently, the process works this
way: When we have enough scientific
information (either through the petition
process or the candidate assessment
program) to indicate that listing is
warranted, FWS biologists in the
appropriate Field Office draft a pro-posed
listing rule. (For foreign species,
the proposed rule is drafted by the FWS
Office of Scientific Authority in Wash-ington,
D.C.) The listing proposal
provides background information on
the species (taxonomy, historic and
current range, population information,
habitat requirements, etc.), a summary
of the threats faced by the species, a
determination and/or designation of
critical habitat if appropriate, examples
of available conservation measures, and
a preview of actions that would be
prohibited (as well as actions that
would not be prohibited) if the species
were to be listed.
Following a review in the appropriate
FWS Regional Office, the draft proposal
is sent to the Washington Office, where
it undergoes further review by FWS and
Interior Department personnel. After
any necessary changes are made, the
listing proposal goes to the Director for
approval and signature. The listing
proposal is then published in the
Federal Register.
Tooth Cave ground beetle (Rhadine
persephone), an endangered insect
from Texas
USFWS photo by Wyman Meinzer
ENDANGERED SPECIES BULLETIN NOVEMBER/DECEMBER 1999 VOLUME XXIV NO. 6 7
So what does it mean to be listed?
Among the conservation benefits authorized for threatened and endangered plants and animals under the ESA are: protection
from being jeopardized by Federal activities; restrictions on take and trafficking; a requirement that the FWS develop and
implement recovery plans for listed species under U.S. jurisdiction; authorization to seek land purchases or exchanges for
important habitat; and Federal aid to State and Commonwealth conservation departments with cooperative endangered
species agreements. Listing also lends greater recognition to a species’ precarious status, encouraging conservation efforts
by other agencies (foreign, Federal, State, and local), independent organizations, and concerned individuals.
Section 7 of the ESA directs Federal agencies to use their legal authorities to carry out conservation programs for listed
species. It also requires these agencies to ensure that any actions they fund, authorize, or carry out are not likely to
jeopardize the survival of any endangered or threatened species, or to adversely modify its designated critical habitat (if
any). When an agency finds that one of its activities may affect a listed species, it is required to consult with the FWS to avoid
jeopardy. If necessary, “reasonable and prudent alternatives,” such as project modifications or rescheduling, are suggested
to allow completion of the proposed activity. Where a Federal action may jeopardize the survival of a species that is
proposed for listing, the Federal agency is required to “confer” with the FWS (although the recommendations resulting of
such a conference are not legally binding).
Additional protection is authorized by section 9 of the ESA, which makes it illegal to take, import, export, or engage in
interstate or international commerce in listed animals except by permit for certain conservation purposes. The ESA also
makes it illegal to possess, sell, or transport any listed species taken in violation of the law. For plants, trade restrictions are
the same but the rules on “take” are different. It is unlawful to collect or maliciously damage any endangered plant on lands
under Federal jurisdiction. Removing or damaging listed plants on State and private lands in knowing violation of State law,
or in the course of violating a State criminal trespass law, also is illegal under the ESA. In addition, some States have more
restrictive laws specifically prohibiting the take of State or federally listed plants and animals.
San Joaquin kit foxes (Vulpes macrotis mutica)
Photo by B. Moose Peterson/WRP
8 ENDANGERED SPECIES BULLETIN NOVEMBER/DECEMBER 1999 VOLUME XXIV NO. 6
Petition received
Service review (90 days)
Review and information gathering
(12 month status review)
“Not substantial”
information
“Substantial” information,
listing “may be warranted”
Data supports need to list
(“Listing is warranted”)
Publish proposed rule to list in Federal Register
Solicit expert opinions of three appropriate and independent species
specialists (peer review). Seek input from public, scientific community,
Federal and State agencies
(60 day comment period)
Species added to list
(effective 30 days after
announcement)
Publish final rule to list in Federal
Register
Data doesn’t support need to list
(“Not warranted”)
Data supports need to list but other
species are of higher priority
(“Warranted but precluded”)
Re-evaluate annually
Announce decision
not to list
The Petition Process
Petitions are formal
requests to list a species
that require published
findings. We (or the
National Marine Fisheries
Service for most marine
species) must make a
finding within 90 days of
receiving a petition (to the
extent practicable) as to
whether there is
“substantial information”
indicating that the
petitioned listing may be
warranted. If this
preliminary finding is
positive, a status review is
conducted. Within one year
of receipt of the petition, we
must make a further finding
that the listing either is or is
not warranted. A positive
one-year finding can be
incorporated into a
proposed listing or, if a
prompt proposal is
precluded by other listing
activities, the proposal may
be deferred. These
“warranted but precluded”
proposals require
subsequent one-year
findings on each
succeeding anniversary of
the petition until either a
proposal is undertaken or a
“not warranted” petition
finding is made.
ENDANGERED SPECIES BULLETIN NOVEMBER/DECEMBER 1999 VOLUME XXIV NO. 6 9
The Public Review Process
Because the FWS wants all poten-tially
interested parties to be aware of
the listing proposal and have an ample
opportunity to provide comments, a
press release announcing the proposal
is published in area newspapers, and
personal contacts are made by Field
Office, Regional Office, and Washington
Office personnel. Cities and counties,
State agencies, Federal agencies,
Congressional offices, local organiza-tions,
and others are notified directly.
A 60-day public comment period
begins once a listing proposal is
published in the Federal Register. A
public hearing must be held if one is
requested within 45 days of publication
of the proposed rule. Public meetings
also may be held in areas where the
species occurs to provide the public
with information about the species and
the proposed listing. The public com-ment
period may be extended or
reopened at any time; however,
extensions must be within reason
because the ESA requires the final
listing determination to be completed
within one year of the proposal’s
publication date.
Peer Review
By law, the FWS must base its listing
decisions on the best scientific and
commercial (trade) data available. To
ensure that good science is part of the
process, the FWS contacts several peer
reviewers during the open comment
period, provides them with the listing
proposal, and asks them to review the
document for scientific accuracy.
Current FWS policy requires contacting
at least three independent reviewers.
They are free to comment on any
aspect of the proposal, but they may
also be asked to consider specific
questions regarding the species’ tax-onomy
or biology.
The Final Determination
The listing proposal has been
published, the public has been notified,
public hearings and/or meetings have
been conducted, leading scientific
experts have provided peer review, and
all comments have been addressed.
What happens next? The final rule
containing the listing decision is drafted,
undergoes the same review process
summarized above, is signed by the
Director, and is published in the Federal
Register. A deci-sion
on whether
to make the pro-posed
listing fi-nal
must be com-pleted
within 12
months from
when the pro-posal
is pub-lished.
If the fi-nal
decision is
positive, the rule
becomes effec-tive
30 days after
publication (to
allow Congress
to review the list-ing)
and the spe-cies
is officially
added to the
Federal endan-gered
and threat-ened
species list.
Many innovative
conservation
tools have been
developed in re-cent
years to
assist with the conservation of endan-gered
and threatened species. The
sooner imperiled species can be
identified and conservation measures
can be initiated, the greater the likeli-hood
for recovery and eventual delisting.
Until recently, Dr. Nicholopoulos was
Chief of the Branch of Conservation
and Classification, part of the Division
of Endangered Species in the FWS
Arlington, Virginia, headquarters
office. She is now the Field Supervisor
for the FWS New Mexico Ecological
Services Field Office in Albuquerque.
Chapman rhododendron
(Rhododendron chapmanii), an
endangered plant from Florida
Photo by E. LaVerne Smith/USFWS

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6 ENDANGERED SPECIES BULLETIN NOVEMBER/DECEMBER 1999 VOLUME XXIV NO. 6
The Endangered Species
Listing Program by Joy Nicholopoulos
The Endangered Species Act of
1973 (ESA) gives the Secretary of the
Interior responsibility for making a very
important decision: determining whether
to place an animal or plant on the
Federal list of endangered and threat-ened
species. This responsibility is
delegated to the Director of the U.S.
Fish and Wildlife Service (FWS). The
Director has authority to approve all
petition findings, listing proposals, and
final listing determinations.
But how exactly does a species
become listed under the ESA? The
process is cumbersome, complex, and
generally poorly understood. It can
happen two different ways: through the
petition process or through the candi-date
assessment process. The ESA
provides that any interested person may
petition the Secretary of the Interior to
add a species to, or to remove a species
from, the list of endangered and
threatened species. Through the
candidate assessment process, FWS
biologists identify species as listing
candidates. (See “The Candidate
Conservation Program” in Bulletin Vol.
XXIV No. 5.) Both processes may result
in a species being proposed for Federal
listing under the ESA.
The Basis for Listing
Under the ESA, the following factors
determine whether or not a species
should be listed as endangered or
threatened:
• the present or threatened destruction,
modification, or curtailment of the
species’ habitat or range;
• overutilization for commercial,
recreational, scientific, or educational
purposes;
• disease or predation;
• the inadequacy of existing regulatory
mechanisms; and
• other natural or manmade factors
affecting the species’ continued
existence.
The Listing Proposal
Procedures for listing vulnerable
plants and animals under the ESA have
become increasingly rigorous over the
years. Currently, the process works this
way: When we have enough scientific
information (either through the petition
process or the candidate assessment
program) to indicate that listing is
warranted, FWS biologists in the
appropriate Field Office draft a pro-posed
listing rule. (For foreign species,
the proposed rule is drafted by the FWS
Office of Scientific Authority in Wash-ington,
D.C.) The listing proposal
provides background information on
the species (taxonomy, historic and
current range, population information,
habitat requirements, etc.), a summary
of the threats faced by the species, a
determination and/or designation of
critical habitat if appropriate, examples
of available conservation measures, and
a preview of actions that would be
prohibited (as well as actions that
would not be prohibited) if the species
were to be listed.
Following a review in the appropriate
FWS Regional Office, the draft proposal
is sent to the Washington Office, where
it undergoes further review by FWS and
Interior Department personnel. After
any necessary changes are made, the
listing proposal goes to the Director for
approval and signature. The listing
proposal is then published in the
Federal Register.
Tooth Cave ground beetle (Rhadine
persephone), an endangered insect
from Texas
USFWS photo by Wyman Meinzer
ENDANGERED SPECIES BULLETIN NOVEMBER/DECEMBER 1999 VOLUME XXIV NO. 6 7
So what does it mean to be listed?
Among the conservation benefits authorized for threatened and endangered plants and animals under the ESA are: protection
from being jeopardized by Federal activities; restrictions on take and trafficking; a requirement that the FWS develop and
implement recovery plans for listed species under U.S. jurisdiction; authorization to seek land purchases or exchanges for
important habitat; and Federal aid to State and Commonwealth conservation departments with cooperative endangered
species agreements. Listing also lends greater recognition to a species’ precarious status, encouraging conservation efforts
by other agencies (foreign, Federal, State, and local), independent organizations, and concerned individuals.
Section 7 of the ESA directs Federal agencies to use their legal authorities to carry out conservation programs for listed
species. It also requires these agencies to ensure that any actions they fund, authorize, or carry out are not likely to
jeopardize the survival of any endangered or threatened species, or to adversely modify its designated critical habitat (if
any). When an agency finds that one of its activities may affect a listed species, it is required to consult with the FWS to avoid
jeopardy. If necessary, “reasonable and prudent alternatives,” such as project modifications or rescheduling, are suggested
to allow completion of the proposed activity. Where a Federal action may jeopardize the survival of a species that is
proposed for listing, the Federal agency is required to “confer” with the FWS (although the recommendations resulting of
such a conference are not legally binding).
Additional protection is authorized by section 9 of the ESA, which makes it illegal to take, import, export, or engage in
interstate or international commerce in listed animals except by permit for certain conservation purposes. The ESA also
makes it illegal to possess, sell, or transport any listed species taken in violation of the law. For plants, trade restrictions are
the same but the rules on “take” are different. It is unlawful to collect or maliciously damage any endangered plant on lands
under Federal jurisdiction. Removing or damaging listed plants on State and private lands in knowing violation of State law,
or in the course of violating a State criminal trespass law, also is illegal under the ESA. In addition, some States have more
restrictive laws specifically prohibiting the take of State or federally listed plants and animals.
San Joaquin kit foxes (Vulpes macrotis mutica)
Photo by B. Moose Peterson/WRP
8 ENDANGERED SPECIES BULLETIN NOVEMBER/DECEMBER 1999 VOLUME XXIV NO. 6
Petition received
Service review (90 days)
Review and information gathering
(12 month status review)
“Not substantial”
information
“Substantial” information,
listing “may be warranted”
Data supports need to list
(“Listing is warranted”)
Publish proposed rule to list in Federal Register
Solicit expert opinions of three appropriate and independent species
specialists (peer review). Seek input from public, scientific community,
Federal and State agencies
(60 day comment period)
Species added to list
(effective 30 days after
announcement)
Publish final rule to list in Federal
Register
Data doesn’t support need to list
(“Not warranted”)
Data supports need to list but other
species are of higher priority
(“Warranted but precluded”)
Re-evaluate annually
Announce decision
not to list
The Petition Process
Petitions are formal
requests to list a species
that require published
findings. We (or the
National Marine Fisheries
Service for most marine
species) must make a
finding within 90 days of
receiving a petition (to the
extent practicable) as to
whether there is
“substantial information”
indicating that the
petitioned listing may be
warranted. If this
preliminary finding is
positive, a status review is
conducted. Within one year
of receipt of the petition, we
must make a further finding
that the listing either is or is
not warranted. A positive
one-year finding can be
incorporated into a
proposed listing or, if a
prompt proposal is
precluded by other listing
activities, the proposal may
be deferred. These
“warranted but precluded”
proposals require
subsequent one-year
findings on each
succeeding anniversary of
the petition until either a
proposal is undertaken or a
“not warranted” petition
finding is made.
ENDANGERED SPECIES BULLETIN NOVEMBER/DECEMBER 1999 VOLUME XXIV NO. 6 9
The Public Review Process
Because the FWS wants all poten-tially
interested parties to be aware of
the listing proposal and have an ample
opportunity to provide comments, a
press release announcing the proposal
is published in area newspapers, and
personal contacts are made by Field
Office, Regional Office, and Washington
Office personnel. Cities and counties,
State agencies, Federal agencies,
Congressional offices, local organiza-tions,
and others are notified directly.
A 60-day public comment period
begins once a listing proposal is
published in the Federal Register. A
public hearing must be held if one is
requested within 45 days of publication
of the proposed rule. Public meetings
also may be held in areas where the
species occurs to provide the public
with information about the species and
the proposed listing. The public com-ment
period may be extended or
reopened at any time; however,
extensions must be within reason
because the ESA requires the final
listing determination to be completed
within one year of the proposal’s
publication date.
Peer Review
By law, the FWS must base its listing
decisions on the best scientific and
commercial (trade) data available. To
ensure that good science is part of the
process, the FWS contacts several peer
reviewers during the open comment
period, provides them with the listing
proposal, and asks them to review the
document for scientific accuracy.
Current FWS policy requires contacting
at least three independent reviewers.
They are free to comment on any
aspect of the proposal, but they may
also be asked to consider specific
questions regarding the species’ tax-onomy
or biology.
The Final Determination
The listing proposal has been
published, the public has been notified,
public hearings and/or meetings have
been conducted, leading scientific
experts have provided peer review, and
all comments have been addressed.
What happens next? The final rule
containing the listing decision is drafted,
undergoes the same review process
summarized above, is signed by the
Director, and is published in the Federal
Register. A deci-sion
on whether
to make the pro-posed
listing fi-nal
must be com-pleted
within 12
months from
when the pro-posal
is pub-lished.
If the fi-nal
decision is
positive, the rule
becomes effec-tive
30 days after
publication (to
allow Congress
to review the list-ing)
and the spe-cies
is officially
added to the
Federal endan-gered
and threat-ened
species list.
Many innovative
conservation
tools have been
developed in re-cent
years to
assist with the conservation of endan-gered
and threatened species. The
sooner imperiled species can be
identified and conservation measures
can be initiated, the greater the likeli-hood
for recovery and eventual delisting.
Until recently, Dr. Nicholopoulos was
Chief of the Branch of Conservation
and Classification, part of the Division
of Endangered Species in the FWS
Arlington, Virginia, headquarters
office. She is now the Field Supervisor
for the FWS New Mexico Ecological
Services Field Office in Albuquerque.
Chapman rhododendron
(Rhododendron chapmanii), an
endangered plant from Florida
Photo by E. LaVerne Smith/USFWS